A Barcelona commercial judge has filed the lawsuit of a Dutch company against Antena 3 (Atresmedia) for unfair competition and for the intellectual property rights of the popular test of ‘El Rosco’ in the contest ‘Pass word‘, concluding that It is already “res judicata”.
In his filing order, which can be appealed to the Barcelona Court, the head of the commercial court 8 of Barcelona argues that a Madrid court has already agreed, after a dispute initiated in 2010 between Telecinco (Mediaset) and the British production company ITV, that ‘El Rosco’ lacks originality and is merely an adaptation of an initial format and that as a television game it was “modeled according to the circumstances of time and place.”
Within the framework of the case opened in Barcelona, the judge already decided last October as a precautionary measure to allow Antena 3 to continue broadcasting the latest test, popularly known as ‘El Rosco’, on the program ‘Pasapalabra’, while resolving the lawsuit filed by the Dutch company MC&F Broadcasting Production and Distribution CV
Between 2000 and 2006 the program ‘Pasapalabra’ was broadcast in Spain by Antena 3, including the game of ‘El Rosco’, while between 2006 and 2009 it passed to Telecinco, a chain that in February 2010 signed a contract with the now plaintiff -the Dutch MC & F- that authorized it to economically exploit the popular test with that the program was ending.
Telecinco sued in December 2010 the British production company ITV before the commercial court number 6 of Madrid, which gave rise to the process in which after again the Supreme Court determined that “El Rosco” had been transferred to ITV, so After nine years of the process, the Supreme Court forced Telecinco (Mediaset) to cancel the contest in October 2019.
In his filing order, advanced by El Mundo, the Barcelona commercial judge recalls that in the hearing prior to the trial in the commercial court 6 of Madrid, held on July 10, 2012, both litigating parties -Telecinco and ITV- They affirmed “expressly and without ambiguity” that the originality and eventual protection of the intellectual property of ‘El Rosco’ was a “controversial” fact..
The Barcelona judge admits that it is “undeniable” that the case raises a “serious and objective legal doubt”, since there is a “diffuse border” with the material res judicata, “which lacks an express legal solution”, which he believes does not justify, however, that it can go into “open contradiction” in the face of what was resolved by court 6 of Madrid.
For this reason, it concludes that the debate on the originality, ownership and legal protection of “El Rosco” has already been tried “and cannot be tried again.”
The admission of a new trial on this matter “would make the positive efficacy of the sentence disappear completely“which was issued by court 6 of Madrid, argues the magistrate, who remarks that, in the first process, the now plaintiff -MC & F- had an” extrajudicial participation “that was” active and fundamental “in favor of Telecinco, for what now can not claim helplessness.
“The plaintiff -MC & F- had full and temporary knowledge of everything that happened in the first trial, from the beginning to the end, but decided not to intervene in it. And since there was no procedural limit, it could have intervened and filed the resources legally provided for in any instance, “says the judge.
For this reason, it emphasizes that the plaintiff cannot now file an “alleged defenselessness” based on the fact that she was not obliged to intervene in the first trial, since “it was she herself who freely created the alleged defenselessness that she now alleges.”
“In other words: the claimant cannot now derive a procedural benefit from a legal position (which she qualifies as alleged defenselessness) that she herself has generated, as this would imply that she was admitted to go against her own procedural acts to the detriment of the opposing party, “the judge emphasizes.
For this reason, it agrees to the definitive file of this procedure, without imposition of costs.